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Special Considerations in the Conduct of a Child’s Personal Injury Claim

August 30, 1996 | By: Roger G. Oatley

You assume a great responsibility when you agree to represent a seriously injured plaintiff, because in such a case your client’s financial future is in your hands. You do your best to represent such a plaintiff, but at the end of the day you have the luxury of taking instructions from a well-informed plaintiff who shares in the responsibility for the result.

When you represent a child the responsibility you assume is profound, because you bear it alone. Although there may be parents or other interested persons who will offer their views, in the end it is you as counsel who must determine what is in the best interests of the child you represent. In the end the judge who approves or disapproves of any settlement for the child will hold you responsible for that settlement and no one else. In the end, when you go to sleep at night, you know that you alone are responsible for the financial future of your client. How well you discharge your duty to the injured child determines his or her entire future.

This article summarizes the special considerations which arise in bringing a claim on behalf of an injured child and how you as counsel must discharge them.

Legal Status of the Child and Procedural Considerations

Any person under the age of 18 years is a minor and under a legal disability: Rule 1.03. Legal disability prevents the child from maintaining an action. The only exception to this rule is a claim in Small Claims Court for up to $500: Rule 4.01(2) of the Small Claims Court.1

A minor cannot commence a proceeding without the assistance of some other person who will be responsible for the costs of the proceeding and through whom the court may compel obedience to its orders: Rule 7.01(1)(a). This person is called the “litigation guardian” of the minor. A litigation guardian must diligently attend to the minor’s interests and take all steps necessary for the protection of those interests: Rule 7.05(2).

There is no need for court appointment of a litigation guardian. A person who is not himself or herself under any disability may act as litigation guardian for the child upon filing an affidavit to the effect that he or she consents, has retained you to act for the child and has no adverse interest to the child.

The failure to appoint a litigation guardian is an irregularity which you may cure by the appointment of a litigation guardian even after the limitation period has expired. However, you should take care to note that if you commence an action without a litigation guardian you may be personally liable for costs even if you were unaware of the infancy of the plaintiff.2

What can you do if no one will come forward to act as litigation guardian? This may happen in cases where liability is particularly problematic or in cases where the child’s parents have a conflict. In such a case the court must appoint the Official Guardian, and if the child is mentally incompetent the court may appoint either the Official Guardian or the Public Trustee: Rule 7.04.

You should inform a potential litigation guardian that while assuming the role is as easy as swearing an affidavit, terminating the role is not so simple. In fact a litigation guardian cannot retire without a court order: Rule 23.01(2). The court will not grant such an order unless a suitable replacement is provided.

If the child attains majority during the course of the litigation the litigation guardian should take no further steps. In such circumstances an order will be granted as a matter of course allowing the former minor to continue without a litigation guardian: Rule 7.06(1)(a).

Make no mistake – the litigation guardian is not the legal counsel to the child; you are. All the responsibility for properly representing the child’s interests rests with you, despite the intervention of the litigation guardian, whose only role is to supplement the child’s want of capacity.

The Role of the Litigation Guardian – Costs Consequences

In discharging your responsibilities, you will want to carefully and thoroughly explain to the litigation guardian the consequences of his or her role. A litigation guardian is an officer of the court and not a party to the action. However, although the role of the litigation guardian is merely procedural, he or she may be examined for discovery. No litigation guardian will thank you for this experience if it comes as a surprise.

The affidavit filed by the litigation guardian must also confirm that the affiant has been informed of his or her possible liability for costs: Rule 7.02(2). Confirming your advice in writing may be your only defence to a claim for indemnity by an angry guardian who finds himself or herself liable for costs. You should also confirm your advice that in the event the guardian wishes at any time to retire from the lawsuit, the court will require him or her to post security for the costs already incurred as a condition to the order permitting the guardian to retire. A simple, standard letter confirming this advice might accompany the draft affidavit when you send it to the proposed litigation guardian for approval.

If the action is brought in the best interests of the child, the litigation guardian will be entitled to indemnity for costs out of the child’s estate, if there is one.3

The Injured Child in the Courtroom When is the Child’s Evidence Admissible?

In assessing the potential for a claim which depends on the evidence of the child, you must consider the special obstacles facing the child as a witness. The Ontario Evidence Act provides:

In any legal proceeding where a child of tender years is offered as a witness and the child does not, in the opinion of the judge, justice or other presiding officer, understand the nature of an oath, the evidence of the child may be received though not given upon oath, if, in the opinion of the judge, justice or other presiding officer, as the case may be, the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.4

Courts have held that a child over the age of 14 years is presumed competent to give sworn testimony.5

You may find support for the admissibility of the child’s evidence in the case of a younger child in the conclusions of the Ontario Law Reform Commission:

There is no empirical research to support the theory that children are more likely than adults to lie. Children, as a class of witnesses, are no less honest than adults and there is no evidence to suggest that children are more prone than adults to make false allegations. On the contrary, psychiatrists and psychologists, as well as many individuals involved in the legal system such as judges, police, and social workers contend that young witnesses are often more truthful than their older counterparts. A principal reason put forth for the truthfulness of the testimony of young witnesses is that many young witnesses believe that the “judge will know if they lie” and punish them, a level of faith in the legal process few adults would be likely to display. As one Ontario judge observes, “my courtroom impression is that the average adult witness relates only convenient recollections at best.”

Requisite knowledge plays an important role in assessing the truthfulness of children’s statements. A child is more likely than an adult to lack the knowledge or cognitive ability to construct a believable false statement. For example, as previously mentioned, young children typically know little about sexuality, and consequently are incapable of fabricating a detailed credible story of sexual abuse.

Therefore, modern studies confirm that there is no relationship between age and honesty. The testimony of a child is as trustworthy as the testimony furnished by an adult.6

You may also support arguments for admissibility on the basis of some caselaw.

Manson J., in Strachan v. McGinn,7 went so far as to allow a child under 6 years of age to be sworn, remarking that “mere years are not the test”.8 In R. v. Bannerman9 Dickson J.A. asserted that a child, in order to give sworn testimony, need only realize that there is a strong moral obligation to speak the truth.

The test the child must meet before he or she may offer unsworn evidence is as enunciated by the Supreme Court of Canada:

To satisfy the less stringent standards applicable to unsworn evidence, the child need only understand the duty to speak the truth in terms of everyday social conduct. This can be demonstrated through a simple line of questioning directed to whether the child understands the difference between the truth and a lie, knows that it is wrong to lie, understands the necessity to tell the truth, and promises to do so…Any frailties that may be inherent in the child’s testimony go to the weight to be given the testimony rather than its admissibility…. The test is whether the child’s intellectual attainments are such that he or she is capable or understanding the simple form of questions that it can be anticpated will be asked, and is able to communicate the answer in an understandable manner.10

Because the child’s evidence will often be crucial to the success of the case, the admissibility and the weight of the evidence will be an important factor in assessing the strength of a case. You must also consider the further qualification that if a child of tender years gives unsworn evidence then the evidence must be corroborated. Section 18 (2) of the Ontario Evidence Act provides as follows:

No case shall be decided upon such evidence unless it is corroborated by some other material evidence.

Sometimes what constitutes corroborative evidence is a difficult question.

In statutes which require the evidence to be corroborated “by some other material evidence”,11 the word “material” is not be taken as synonymous with every fact required to be proved to establish a cause of action.12 It is sufficient if there is evidence strengthening the evidence requiring corroboration “which appreciably helps the judicial mind to believe one or more of the material statements or facts deposed to”.13 This is generally the test in civil cases.14 The corroborative evidence cannot, however, be in respect of irrelevant and immaterial matters; it must be corroborative of the party’s evidence in essential matters.15

Corroboration can be found in the evidence of the opposite party16 and, indeed, in his failure to testify or to call available witnesses.17

If the court is satisfied that the statutory requirement has been met, it then weighs the evidence in the same way as if there we no statutory requirement with respect to corroboration.18

Funding the Claim

I know of no special source of funding for a child’s claim. Certainly the office of the Official Guardian and the office of the Public Trustee have no funds available for civil actions by children.

Lawyers who act for personal injury claimants must have understanding bankers, because it is the very rare victim of serious injury who is able to fund an action. Children are in no different position than adults in this respect. Almost always the funding for these claims will come from you.

Limitation Periods

It is settled law that a limitation period does not begin to run against a child until the child reaches majority. So, unlike the usual case with respect to claims by adults, the clock does not start to run until the child celebrates his or her eighteenth birthday.19

However, a child’s derivative claim under the Family Law Act, as distinguished from the child’s own claim for loss, cannot proceed if the parent’s action is statute barred. Also, an adult’s claim cannot piggy-back on the child’s claim unless the child’s claim is brought within the relevant limitation period.20

The Basis of Liability in Actions by Children as Plaintiffs(a) Negligence

In addition to special procedures and special professional responsibilities there are special rules governing negligence against children.

The common law requires that a reasonable person should guard against children, understanding that they may be a source of danger.21 For example, parents are required to supervise their children reasonably,22 and teachers and schools must act as a reasonable careful parent with a large family.23

The obligation to ensure the use of seat belts is a further example of the application of these special rules. A driver of a motor vehicle has a duty to take reasonable steps to ensure that a passenger under 16 years of age wears a seat belt. The presence of the child’s parent as a passenger in the vehicle does not negate the driver’s duty, but may vary the degree of the driver’s responsibility, depending on the circumstances of the case.24

Where a defendant creates the opportunity for danger, he or she will be liable where children avail themselves of such opportunity, because there is a duty to foresee the presence of children and anticipate their natural curiosity.25 This duty marks an important distinction from personal injury claims for adults.

Fleming explains that an obligation to control the behaviour of another may arise at common law by reason of a special relationship between the defendant and that person and he suggests that the most familiar illustration of the duty to control another arises from the relation of parent and child.26 He asserts that without going so far as to attach vicarious liability, the common law insists that parents at least exercise reasonable care, commensurate with their peculiar ability to keep their offspring under discipline and supervise their activities for the sake of public safety.27 The author adds that although most often charged with negligence for conniving at their children’s mischief-making or possession of dangerous implements, parental responsibility may also be activated by far less sensational puerile hazards, like toddlers diving into traffic and causing drivers to imperil themselves in evasive manoeuvres.28

The liability of a parent for the negligence of his or her child is not strict. It has been held, for example, that young boys are not to be classed as “wild animals”.29 The standard of care is that of the reasonable parent having regard to the practices and usages prevailing in the community and the common understanding of what is practicable.30 Fleming suggests that this requires a weighing of the risks to others which the child’s conduct involves against the competing need of giving those growing up sufficient scope to develop a sense of personal responsibility.31

(b) Contributory Negligence

There is no arbitrary minimum age for civil responsibility. Each case will be determined having regard to the particular child’s capacity to cope with the relevant risk, unless the child is so young as to be clearly incapable of responsibility.32

In fact children under the age of 6 appear to be subject to the “tender years” doctrine and presumed incapable of contributory negligence.33 The test is probably a subjective one, depending upon the “qualities and defects of the particular child and all of the opportunities or lack of them which he might have had to become aware of any particular peril or duty of care”. In this regard, a court has adopted the suggestion of Glanville Williams, that:

…where the age is not such as to make a discussion of contributory negligence absurd, it is a question for the jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience.34

Although children of tender years are probably incapable of negligence, children of six or seven years of age or more are presumed to be competent enough to be subject to a combined objective and subjective standard. Objectively, did the child exercise a standard of care expected from a child of like age, intelligence and experience, and subjectively was the conduct negligent given the evidence of the child’s capacity, knowledge and experience.35/36

(c) Assault and Battery and Breach of Fiduciary Duty

In recent years there has been an explosion of claims by adults who were injured as children by their parents or others who owed a fiduciary duty to protect the child, such as a priest. In confirming that a parent is a fiduciary, the Supreme Court of Canada also decided that limitations periods do not run against the child to protect the parent.37 In these cases the courts will award both general and punitive damages.

(d) Claims under the Family Law Act

Under S. 61 of the Family Law Act children also have a cause of action for what amounts to the personal injury of loss of care, guidance and companionship arising on injury or death to a family member. The relevant statutory provisions are as follows:

61. — (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.38

This cause of action is available to a child born outside marriage having a relationship with a parent where there is demonstrated a “settled intention to treat the child as a member of his or her family”.39

Special Considerations in Drafting Pleadings

There are special considerations in drafting pleadings with respect to status as described earlier, and also with respect to the allegations of negligence and the nature of the damages. Since pleadings limit the scope of discovery and the admissibility of evidence at trial care must be taken to understand the caselaw and the nature of the evidence to be lead before the pleadings are drafted.

I learned this lesson in the course of prosecuting a case which went to trial and was reported because of the imposition of liability on the tortfeasor child’s parents.40 In that case I sought to prove that the child had an unusual propensity for mischief, to a degree that should have alerted the parents to the need to keep a gun under lock and key. My investigation revealed numerous mischievous activities which demonstrated this propensity. On discovery I sought admissions of the parents that they were aware of these activities prior to the incident giving rise to the action. Because I had not pleaded the propensity, counsel for the defendant parents refused to allow the parents to answer and consequently the case proceeded to trial without the benefit of these admissions.

In any action where a child has been injured you will wish to think through carefully the elements which give rise to the duty of care owed to the child, especially if it is not a duty which would arise had an adult been injured. For example, I recently commenced an action against a municipality for failing to grate a culvert where a very young child fell into a watercourse not far from her home. There might be little if any judicial sympathy for an adult who is injured in similar circumstances, so it is necessary to plead sufficient particulars to lead a court to conclude that the result should be different where a child is concerned.

Similarly, care must be taken concerning the pleading of damages, because damages must often be calculated without a historic basis.

Proof of Damages

The proof of damages to a child presents special challenges, especially where loss of income or economic opportunity is concerned. How do you prove a level of loss when the child’s educational attainments and employment prospects are unknown? How do you establish what the probable level of these attainments and prospects are without any historic basis?

I have attached as Appendix “A” to this paper an article which I prepared some years ago which explains an approach which has judicial approval. Courts will consider any relevant evidence in making these determinations, including the pre-morbid intelligence and aptitudes of the child, the achievements of the child’s parents and siblings and the child’s social and cultural characteristics. The evidence of experts, especially educational psychologists and economists is essential to a proper presentation of damages on behalf of a child with serious personal injuries.

Parents Present Special Problems

Few situations are as difficult as the case in which a parent has contributed to his or her child’s serious injuries. Usually the parent attends the initial meeting with counsel and brings with him or her an enormous sense of guilt. It takes courage, commitment and sensitivity when counsel must explain to such a parent that he or she must be a defendant in the child’s action.

For example, I have two actions underway in which children were seriously and permanently injured when alighting from or approaching a motor vehicle operated by the child’s mother. Because the mother is insured in both instances for the use or operation of the motor vehicle I have a duty to the child to name the mother as a defendant in the hope of accessing the mother’s insurance, even though there may be other liable defendants. In most cases where children are injured there will be liability on the parent for failing to properly supervise or instruct the child.

Needless to say the parent who learns he or she must be a defendant will not be pleased. During a lengthy lawsuit, and most children’s claims tend to be lengthy, this reality will often cause tension in a family. Counsel must be sensitive to the powerful emotional consequences and be ready to support the family. Counsel must also refuse to meet with the defendant parent after the initial interview because of the obvious impropriety and because of the risk of jeopardizing the parent’s insurance coverage.

Proving Family Law Act Claims arising from Children’s Injuries

Whenever I have the opportunity I serve a jury notice in personal injury claims, because juries are more likely to be generous than some judges. This is especially so in Family Law Act claims where the nominal range of damages awarded by our courts strikes most jurors as niggardly. While there is no value in a verdict that will be struck out by the Court of Appeal, counsel should seek the maximum allowable or seek to prove that there are special circumstances which justify a higher award.

While it is clear law that a family member is not entitled to compensation for grief, it is equally clear to experienced counsel that judges and jurors are influenced by this evidence. Such evidence is admissible as evidence of the nature of the relationship which has been damaged or lost. One very effective way of presenting this evidence in a relevant and compelling fashion is through a clinical psychologist who has experience working with families and with grief counselling.

Preparing for Discovery (a) The Injured Child

Most children will be intimidated by the apparent formality and the novelty of the examination for discovery. Every effort made to prepare the child for the discovery will improve the odds that the child will do well when examined. It is a mistake to have a parent present when preparing the child, because parents cannot resist helping the child answer your questions. Since the parent will not be present with the child on the child’s examination your preparation will be more effective without the parent present. Since the child’s understanding of the meaning of the oath and moral responsibility will be crucial at trial, wise counsel prepare their infant client for this aspect of the examination for discovery. The extent of preparation and the approach you take will depend on the child’s age and the theory of your case. If you are not comfortable with children, arrange for a colleague to assist you with the preparation or seek advice. Every effort must be made to avoid further trauma to the child from the litigation process. Finally, since some defence psychiatrists delight in blaming the child’s continuing problems on the litigation, it is wise preventative advice to counsel the child concerning this trap.

(b) The Injured Child’s Parent

Special care should be taken when preparing the injured child’s parents who are examined as Family Law Act claimants or as litigation guardian. Conflicting evidence from parents can be problematic (so much so that I recommend avoiding Family Law Act claims unless they are significant). In some circumstances evidence as to what the child said to the parent might be admissible and care should be taken to ensure this evidence is clear. Often the parent will give the best evidence concerning the child’s pre-morbid personality, abilities and ambitions and essential evidence concerning the child’s impairments and their consequences. Because parents will be asked about the child’s knowledge of the risk care should also be taken to review this crucial aspect of the case.

(c) Defendants

In these cases plaintiff’s counsel will seek evidence that the defendant knew or should have known of the risk that a child might be injured by the activity in question. Such evidence can be found in terms of common sense, the defendant’s own life experiences, or corporate records where concerns about the risk have been expressed. Where corporations or institutions are concerned it is important to insist on exhaustive production of documents and their examination prior to the examination for discovery.

Proving Liability (a) Auto Cases

Children are often injured when they walk or run out in front of traffic. Counsel may abandon such cases as hopeless without appreciating the duty on the driver in appropriate circumstances to anticipate just such behaviour and take steps to avoid harm. In such cases a duty will arise if evidence is led that the area where the injury occurred is such that the defendant knew or should have known that children were about. This evidence might be aerial photographs (taken routinely by the province) to demonstrate the proximity of residences, schools, parks, playgrounds and variety stores that attract children. An investigator’s count of children in the area and their habits can also be effective, particularly if it is tied to the time of the day when the injury occurred. It is also helpful to show the defendant’s familiarity with the road where the accident occurred. If the defendant had driven the route before and observed children in the location, his or her guard should be up. Also, if other children were about and if the driver saw them before the accident, this evidence demonstrates that the driver should have been aware of the risk.41

(b) Products Cases

I am a big fan of the evidence of psychologists and biomechanical engineers who can testify as to the human factors inherent in an injury. Gerry Swaye’s article for this program is an outstanding review of strategies for proving liability in these cases. I only wish to point out the error of analyzing the duty of care through the eyes of an adult – it is not what an adult would do which counts, it is what a child would do.

Settlements

Although the approval of the Official Guardian is no longer required, all claims on behalf of children must be approved by the court. I once acted for a solicitor who had negligently settled a serious brain injury case for a child and who had failed to obtain court approval. If the settlement had been taken to a judge I doubt it would have been approved in the first place. Defence counsel in that case took a big gamble in not insisting on court approval, because without court approval the settlement was void and the law suit was therefore still alive.

When you act for a child you will be concerned that the benefit of the settlement flow to the child and not to the child’s parents. I am sometimes concerned that as soon as the child turns 18 the parents will be quick to get their hands on the money. Structured settlements are a very effective way to ensure a lifetime of benefit to the child which avoids the risk that the parents
or the child will mismanage the money.

Settlements for children require great caution on the part of the solicitor, because the child can never be faulted for a bargain that is unwise. Because injury claims have become extremely complex, the smart lawyer will seek counsel from an expert if he or she has any doubt about the settlement.

In my experience few personal injury cases are so rewarding as successful claims for children. These claims offer special challenges and substantial risk, but for plaintiff’s counsel they also offer great satisfaction. From time to time a former client comes to see me who I helped when the client was a child, just to say thank you in a way that was not possible when the client was young. That is very special.

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